Common Sense Rules of Advocacy for Lawyers: A Practical Guide for Anyone Who Wants to Be a Better Advocate

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Common Sense Rules of Advocacy for Lawyers

Softcover:

ISBN: 158733-185-3

ISBN 13: 978-1-58733-185-5

Hardbound:

ISBN: 158733-005-9

ISBN 13: 978-1-58733-005-6

Foreword

I wrote this book in the first place* as a kind of guidebook for young lawyers who had to do a trial in court. And I have been pleased over the years to hear from people who claimed they had won a verdict because they used one of the techniques I suggested. I have been told as well that these practical rules are as useful outside the courtroom as they are in it. And I do agree that if you have to make a presentation or negotiate a deal, these rules will undoubtedly help you.

But I don’t want to re-write the book so as to point out that this or that rule is of particular importance in any kind of negotiation or alternative dispute resolution, or that an account executive making a pitch should pay special attention to this one or that one. You are intelligent enough to see how a rule lifts out of the courtroom and can be used in negotiations and presentations, and, indeed, in every kind of relationship. My second wife complained, I wish you’d use your advocacy on me, and looking back on it, I should have done.

And it is in the framework of a trial in court that the rules can be most easily explained. So although I have been persuaded to adopt a new title, what you are getting here is more or less the original advice for the brave young lawyers who dare to do a case in court. You’ll find it quite funny in places, and you’ll easily decide which rules you want to take with you into your daily life and into your work.

I think the central rule of this whole book is Newton’s Rule, as I have called it. You can’t possibly convict my client on this evidence, says the lawyer, and although the jury don’t move a muscle you can see them all thinking, Oh no? You wanna bet? Every action has its equal and opposite reaction, and this rule is working all the time when people are communicating or trying to communicate.

But we’ll come to Newton’s Rule, as we will to the Rule of the Honest Guide. When you’ve familiarized yourself with all the rules you’ll even find it easier to fix a date.

If a new rule occurs to you and you are willing to share it, please get in touch and tell me about it. I can be contacted through my publisher, Chug Roberts, at TheCapitol.Net, PO Box 25706, Alexandria, VA 22313-5706; www.TheCapitol.Net; 703-739-3790, and I very much look forward to seeing this collection added to.

Here, then, apart from the occasional footnote, is the book as it was designed for the lawyers. Enjoy—as they intransitively say in California.

Keith Evans

February 2004

* This book was originally published in 1994 by West Publishing as The Common Sense Rules of Trial Advocacy. Appendix Three, How to Succeed as a Lawyer, by Roland Boyd, is new in this edition.

Original Foreword

(December, 1993)

This book is based upon a seminar which has been presented in many parts of America under the sponsorship of the American Inns of Court Foundation. Since the American Inn of Court is a comparatively new arrival on the scene, a word of explanation is called for.

The original Inns of Court in London came into being in the 1300s, and for centuries they have been centers of training for English-speaking trial lawyers. Before the Revolutionary War many Americans studied there: several of the people who signed the Declaration of Independence were members of those original Inns of Court. But after 1776, America went its own way and unified its legal profession, doing away with the ancient distinction between specialist trial lawyers and the rest.

No harm was done by this. On the contrary, American trial advocacy went from strength to strength during the 200 years that followed and produced some of the finest advocates in the history of the English language. But then came the explosion of the discovery.

Young men and women who had come to the bar, fired with the ambition to spellbind juries, found that, instead, they were having to spend their time taking or defending depositions and treading the paper-mill. They hardly got into court at all and had to wait years for their first trials. The bench began to complain about falling standards, and about what one distinguished judge called the proliferation of incompetents in the courts. In hardly more than one generation, the effective, courteous, economical, entertaining advocate became almost an endangered species. Out of the need to do something about this came the idea of the American Inn of Court.

What happened was remarkable. A federal judge called together the leading trial lawyers of his district and, with the authority of his office, there and then created a kind of club, a society surprisingly like one of the old Inns of Court. Here the best trial lawyers of the older generation could meet regularly with much younger attorneys and try to pass on the trial skills, the ethics, and the courtesy learned in a lifetime of trial practice. The younger lawyers were accepted as members of the Inn for a limited period, while the senior attorneys, and many judges as well, committed to several years of meeting and teaching. The entire membership met once a month for a few intensive hours, and twice a year they all sat down together at a formal dinner. One intake of young lawyers was succeeded by the next, and the influence of this new, American Inn of Court steadily spread out through the community.

It also spread throughout the country. In 1993, as this book goes to press, there are already more than 200 Inns across America*. Many cities have several. Washington, DC, has ten, and more are being formed all the time. This has all come about since 1980, and in my view, it’s one of the most important things that has happened in the common law for years.

The Inns have avoided the dangers of elitism, as anyone who has attended their meetings will know. Certainly, they’re a terrific network, but the only qualification for membership is a keen determination to learn. There was an immense demand for places at the outset and many people had to be turned away, but that demand led to the founding of new Inns. If things carry on at the present rate of expansion, no one who really wants to be a member will be disappointed.

I personally look forward to the time when there’s an Inn for every 200 or so attorneys, and when Inn membership is the norm for every lawyer. A professional home is something the American attorney has long had to do without, and many have envied the British the collegiality of their Inns of Court. As a member of both an old and a new Inn, I can vouch for this: although there are no ancient rafters and no black gowns, America has incorporated all that was, and is, best about the original Inns of Court. The companionship is wonderful, the sense of actually doing something about the problems facing the profession is very strong, and the teaching provided is invaluable.

This book on advocacy, and the seminar on which it is based, is one lawyer’s contribution. Advice and encouragement came to me from many sources. I am particularly grateful to Judge William B. Enright and to David Monahan of Gray, Cary, Ames & Frye, both of San Diego, who were the first to read and critique the script of the seminar. My thanks also go to Professor Sherman L. Cohn of Georgetown Law Center, the President of the American Inns of Court Foundation, to Judge James N. Barr, and to Vern Schooley, both of Orange County, to Ralph L. Dewsnup of Salt Lake City, and to Michael W. Coffield of Chicago, all of whom recognized the need for this kind of teaching and were especially instrumental in supporting it. I also want to thank Chug Roberts, of West Publishing Co., whose enthusiastic and sensitive editing of the script of the seminar helped to produce this book. Lastly, my warmest gratitude to Judy Prevatte and Susan Walton, my secretaries, for all their cheerful and untiring assistance, and to Denise Couch for her magical help with the word processing.

By serendipity rather than design, these Common Sense Rules, when we counted them up, numbered exactly one hundred. But I certainly don’t want to suggest that all Common Sense Rules of Advocacy have been tracked down and included in this book. There are bound to be others, rules that I haven’t personally come across, or haven’t formulated. And that is where you, the reader can help. If a new rule occurs to you and you are willing to share it, please get in touch and tell me about it. I can be contacted through my [Publisher, Chug Roberts, at TheCapitol.Net, PO Box 25706, Alexandria, VA 22313-5706;www.TheCapitol.Net; 703-739-3790], and I very much look forward to seeing this collection added to.

Keith Evans

San Diego, California

December, 1993

About the Author

Keith Evans is a retired member of the Bars of both England and California, a Scholar of the Middle Temple Inn of Court in London, a member of Gray’s Inn and a former Honorary Master of San Diego’s Louis M. Welsh American Inn of Court.

He studied law at Cambridge and started trial practice as an English Barrister in 1963. From 1975 until 1996 he was an active member of the California Bar.

He has handled several hundred jury trials and has practiced in state and federal courts as well as, in England, every court from the Old Bailey to the House of Lords.

He was forced to retire (while, as he puts it, on a winning run) after suffering a stroke in 1998.

The holder of an Outstanding Trial Lawyer award from the San Diego Trial Lawyer’s Association, he is also a distinguished teacher of trial advocacy. His book on the subject is the standard text in England and in many parts of the British Commonwealth.

He has been a visiting professor at an American university law school and has been on the faculty of NITA, and he still teaches a highly acclaimed full-day CLE seminar on trial advocacy.

He practiced with several firms in the United States, including Gray, Cary in San Diego and the aviation litigation firm of Speiser, Krause & Cook in New York City and Washington, DC.

Skillful advocacy is a rare commodity. Although every generation produces its small handful of great advocates and a variable crop of really competent ones, the bulk of attorneys appearing in our courts never perform as they could—and should.

It’s been the same for centuries, all over the English-speaking world. It’s because we don’t operate a system that guarantees a trial lawyer will really know what he or she is doing before handling a trial. Qualify as an attorney and you immediately have the right to screw up somebody’s case in court. We lawyers have been left with a huge field in which to demonstrate our incompetence.

Certainly, there is advocacy training available. The invitations we get to attend this seminar or that three-day program are incessant. And some of them are superlative: they deliver what they promise. But despite mandatory continuing legal education there is still no system in place that requires you to show that you know what you are doing before you go into court.

Looked at from the point of view of the young advocate, we see the other, equally truthful, side of the coin. We are scared stiff of our first trials—always were. Our biggest fears are, one, that we are going to make fools of ourselves and, two, that we’ll meet something we’ve never met before and just not know what to do.

Tell me, Mr. Evans, says the judge, interrupting my opening, "is this a Smith-v-Manchester kind of case?"

"Smith-v-Manchester? I ask myself. What is a Smith-v-Manchester kind of case?"

It can be terrifying, and it usually takes years of practice to build one’s confidence as an advocate. During those years—if we ever get the chance of trial work—most of us learn mainly by trial and error. And that, when you think about it, means the client’s trial and the lawyer’s error.

One day, perhaps, things will be different. The time may come when we look back and wonder how we could have allowed our courts of law, the most important protectors of our freedoms and of our empowerment, to be populated with under-trained advocates. And how we could have permitted to continue, all these centuries, the despairing disbelief of the client who suddenly realizes his lawyer is hopeless.

Trial advocacy is a skill that can be taught. If the teacher is competent and if the student has the right frame of mind, and is willing to devote not more than ten minutes a day to thinking about advocacy, then anyone capable of passing the bar is also capable of becoming an excellent trial lawyer. It is not a mystery: it is a skill.

Skills can be acquired.

This book makes a promise. If you devote three minutes a day to reading something in it, then another seven minutes thinking about what you have read, in two months you will already be better than 85 percent of the competition. If you really interest yourself in advocacy and take it seriously, you’ll